REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#21)
THIS BILL IS APPROVED

This bill, introduced at
the request of the Chief Administrative Judge upon the recommendation of
his Advisory Committee on Civil Practice, would amend CPLR 6313 to require
prior notification to an adverse party in connection with any application
for a temporary restraining order ("TRO") other than in summary
proceedings under Article 7 of the RPAPL. CPLR 6313(a), as presently constituted,
permits the issuance of a temporary restraining order without notice if
the applicant can show that Aimmediate and irreparable injury, loss or
damages will result unless the defendant is restrained before a hearing
can be had@.

Under the amended CPLR 6313(a),
notification of the application for a TRO would be mandatory unless the
applicant shows, by affidavit or affirmation, that the giving of notification
is impracticable or would defeat the purpose of the order. If the TRO is
granted without notification, the Court must state in its order the reason
for dispensing with notification. The bill also codifies established procedures
which make notice of an application a necessary predicate to the issuance
of a TRO against a public officer, board or municipal corporation of the
state by providing that, without notification, no TRO could be granted
against such an entity to restrain the performance of statutory duties.
The amendment would substantially conform state practice to the notification
provisions for obtaining a TRO under Federal Rule of Civil Procedure 65(b).

The bill provides for the
notification to consist of either (1) a telephonic, facsimile or verbal
communication with or to the adverse party advising of the application,
or (2) a good faith attempt to so communicate. The only evidence required
to be presented to the Court of such notification or he attempt to notify
would be the sworn testimony of the person acting on behalf of the applicant.
The term "notification" is used in the bill, rather than the
term "notice," to make clear that the notification to the other
party required upon application for a TRO is not the formal eight days'
notice required for a formal motion, but rather, the communicationto the other party of the fact of the application.

The bill is sound and should
be approved. The opportunity for notice and to be heard before being subject
to the command of a court is an essential underpinning of due process.
The requirement for notice where feasible, present in Fed. R. Civ. P. 65,
but absent in CPLR 6313, reflects Athe fact that our entire jurisprudence
runs counter to the notion of court action taken before reasonable notice
and an opportunity to be heard has been granted both sides of a dispute.
Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck
Drivers Local No. 70 of Alameda County, 415 U.S. 423, 438 (1974).

Because the absence of informal
notice and an opportunity to be heard goes so fundamentally against modern
principles of due process, many judges refuse to enter temporary restraining
orders unless the opposing party receives some form of informal notification
and an opportunity to be heard. McLaughlin, Practice Commentaries, McKinney's
Cons. Laws of New York C6313:1. As Professor McLaughlin points out this
is saluatory practice. It is absolutely required under federal practice.
Emery Air Freight Corp. v. Local Union 295, 449 F.2d 586 (1968), cert.
denied, 405 U.S. 1066 (1972). Unfortunately, nothing in CPLR 6313 requires
such informal notice, and, given that omission, many judges will issue
ex parte TROs. The availability of such ex parte relief can, and often
is, used to subject the unnotified party to substantial abuse and is often
used to gain a tactical advantage in litigation. It is a practice utterly
inconsistent with due process and procedural fairness.

CPLR 6313, as currently drafted,
fails to reflect these modern principles of procedural due process. There
is no requirement in the statute limiting its application to the situation
where the giving of informal notice. See Carroll v. President and
Com'rs of Princess Anne, 393 U.S. 175, 180 (1968). There is a place
in our jurisprudence for ex parte issuance, without notice, of temporary
restraining orders of short duration; but there is no place within the
area of basic freedoms guaranteed by the First Amendment for such orders
where no showing is made that it is impossible to serve or to notify the
opposing parties and to give them an opportunity to participate.

The bill, as crafted, is
well designed to permit the court to dispsense with informal notice where
appropriate, but only in appropriate circumstances. The possibility for
dispensing with the notification requirement would remain for appropriate
circumstances, as is the case under Federal Rule of civil Procedure 65(b).
Few problems have been encountered since the Federal Rules were amended,
in 1966, to require prior notice.

A further benefit to the
bill would that it should curtail unnecessary motion practice. The opportunity
to gain a TRO ex parte and thus gain a tactical advantage in the litigation
leads many litigants to seek the TRO were they otherwise would not. It
also encourages litigants to make such applications in New York state courts
rather than in other forums or federal courts where the availability of
ex parte relief is far more curtailed. New York's reputation for granting
ex parte TROs, unfortunately, well established. Moreover, where notice
is afforded to the other side, the Court can hear both sides at the outset
and may be able to resolve the matter without the need for further motion.
Under the proposed amendment, in many cases the follow-up court appearance
now required under current practice after a TRO is served might be eliminated,
thereby tending to preserve judicial resources.

Some members of this committee
have expressed the view that the notification requirement should be inapplicable
in matrimonial cases because of the high degree of risk of domestic violence
which might be occasioned by the mere application, it is difficult to conceive
that notice of the issuance of a TRO on an ex parte basis would
be any less of an incitement to an abusive spouse. Moreover, the opportunity
remains for the applicant to convince the Court to exercise its discretion
to dispense with the notification requirement based upon the particular
facts in the case before it. The more serious concern raised in matrimonial
cases, which of the application for a TRO, since frequently made simultaneous
with the commencement of the action, may inspire a defendant to seek to
avoid service. Only empirical evidence of such a possible prejudicial effect
on plaintiffs seeking to effect service of process in matrimonial cases
will support the suggestion of an exception to the notification requirement
in matrimonial cases. The committee has also consulted the Family Law Section
of the Association, and they have expressed their support for the bill.

The Committee notes that
the bill carves out Article 7 proceedings from the notification requirement
apparently to permit tenants to obtain ex parte stays of warrants of eviction.
The Committee notes, however, that the notification provision applies only
to TROs issued under CPLR 6313. CPLR 6313 governs only TROs granted pending
a motion for a preliminary injunction under. A stay of proceedings is not
within the scope of CPLR 6313 since those motions do not involve applications
for injunctions. Nor are temporary orders of protection governed by CPLR
6313 since those motions have a separate statutory framework. See CPL
530.13; Family Court Act. Art. 4; Seealso People v. Forman,
145 Misc.2d 115, 546 N.Y.S.2d 755 (Crim. Ct. N.Y. Co. 1989).

It is suggested that the
bill be modified to use the terms the "applicant" and the "adverse
party," since all applicants for TROs will be subject to the provisions
of the proposed amendment, regardless of their status as plaintiff or defendant
in the action in which the TRO is sought.

In summary, the Committee
believes that the proposed bill is sound and needed in order to bring CPLR
6313 in conformity with modern principals of due process.